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- KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit (No 2)[2016] QCAT 516
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KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit (No 2)[2016] QCAT 516
KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit (No 2)[2016] QCAT 516
CITATION: | KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit & Anor (No 2) [2016] QCAT 516 |
PARTIES: | KLM (Applicant) v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit (First Respondent) The Commissioner of Police (Second Respondent) |
APPLICATION NUMBER: | OCR058-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 17 August 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan |
DELIVERED ON: | 2 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – Tattoo Parlours – where review of decision to refuse operator licence – where review of making adverse security determination by second respondent – whether the applicant is a fit and proper person to hold a licence – whether it would be contrary to the public interest for the licence to be granted Tattoo Parlour Act 2013 (Qld), s 15, s 20, s 57, Schedule 1 Criminal Code (Qld), s 1 Criminal Code (Criminal Organisations) Regulation 2013 AJO v Director-General Dept of Transport [2012] NSWADT 101 DT & Anor v Department of Justice and Attorney General – Industry Licencing Unit & Anor [2015] QCAT 228 MKN v Chief Executive of the Queensland Department of Justice and Attorney General (No 2) [2015] QCAT 452. |
APPEARANCES: |
|
APPLICANT: | Chris Main of Irish Bentley Lawyers appeared for the Applicant |
FIRST RESPONDENT: | Peter Rashford, Principal Probity Review Officer, Industry Licensing Unity, Department of Justice and Attorney-General appeared for the First Respondent |
SECOND RESPONDENT: | Michael Nicolson of Counsel, instructed by the Queensland Police Legal Unit appeared for the Second Respondent |
REASONS FOR DECISION
- [1]KLM applied to the Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit (‘Chief Executive’) for a tattoo operators licence under the Tattoo Parlour Act 2013 (Qld) (‘TPA’). The application was refused by the Chief Executive after the Commissioner of Police (‘the Commissioner’) made an adverse security determination about KLM.
- [2]The Chief Executive under the TPA must refer any application for a licence to the Commissioner for an investigation determination and report as to either or both of the following:
- whether the applicant is a fit and proper person to be granted the licence;
- whether it would be contrary to the public interest for the licence to be granted.[1]
- [3]A negative determination by the Commissioner on either of these matters is referred to in the TPA as ‘an adverse security determination’.[2]
- [4]In making the adverse security determination the Commissioner under s 20(3) of the TPA
- (1)… may have regard to a criminal intelligence report or other criminal information held in relation to the applicant or licensee, or a close associate of the applicant or licensee, that
- (a)is relevant to the business or procedures carried on or performed, or proposed to be carried on or performed, under the licence; or
- (b)causes the commissioner to conclude improper conduct is likely to occur if the applicant is granted the licence or the licensee continues to hold the licence; or
- (c)causes the commissioner not to have confidence improper conduct will not occur if the applicant is granted the licence or the licensee continues to hold the licence.
- [5]Whilst the Chief Executive, and on review the tribunal, is statutory obliged to refuse the application if an adverse security determination is made, if an applicant seeks to review that decision, the Tribunal can conduct a merits review of the Commissioner’s decision to make the adverse security determination.[3]
- [6]The merits review of that decision is however subject to the modifying provisions of the TPA being the relevant enabling act.
- [7]Section 57 of the TPA modifies the usual procedure in a merits review whereby all material before the decision-maker is before the Tribunal and the applicant. It provides for confidentiality of criminal intelligence reports or other criminal information that the Commissioner had had regard to.
- [8]The tribunal has previously determined that the criminal intelligence report was correctly categorised as criminal intelligence or criminal information.[4] Consequently that criminal intelligence report has been considered by the tribunal in arriving at this decision, however it has not been provided to the applicant.
- [9]KLM now seeks a review of the adverse security determination and the licence refusal decision.
Was the decision of the commissioner to make an adverse security determination about KLM the correct and preferable decision?
- [10]It is common ground that the issue before the tribunal is whether KLM is a fit and proper person to hold a licence and whether it would be contrary to the public interest for the licence to be granted.
What is the meaning of ‘fit and proper’ and ‘the public interest’?
- [11]The TPA does not define the terms ‘fit and proper person’ or ‘public interest’.
- [12]Section 14A of the Acts Interpretation Act 1954 (Qld) provides that the interpretation which best achieves the purpose of the Act is to be preferred, and this applies whether or not the Act’s purpose is expressly stated in the Act. The TPA does not expressly state its purpose, and thus recourse must be had to extrinsic material, including any explanatory notes or memoranda.[5]
- [13]The Explanatory Notes to the Tattoo Parlours Bill 2013 explain the policy objectives of the Bill as follows:
The principle policy objective of the Bill is to introduce a new occupational licensing and regulatory framework which eliminates and prevents infiltration of the Queensland tattoo industry by criminal organisations, including criminal motor cycle gangs and their associates.
…
The objectives of the Bill align with the Queensland Government's commitment to address serious community concern about recent incidents of violent, intimidating and criminal behaviour of members of criminal motor cycle gangs, as well as the infiltration of criminal organisations into particular business operations, especially tattoo parlours.[6]
- [14]The Explanatory Notes provide that the policy objectives are:
…eliminating and preventing criminal infiltration of the Queensland tattoo industry (particularly by criminal motorcycle gangs) by establishing a new occupational licensing and regulatory framework for the body art tattoo industry.
This approach is the most effective way of excluding criminal organisations and their members from the body art tattoo industry, and of providing the community with assurance that people authorised to operate body art tattoo parlours and work as body art tattooists have been subject to rigorous identification and probity requirements.[7]
- [15]It is within this context that I will consider whether KLM is fit and proper to hold a tattoo licence and whether it is in the public interest for him to do so.
Fit and Proper
- [16]An exhaustive review of authorities on the phrase fit and proper in the context of various pieces of legislation was undertaken in AJO v Director-General Dept of Transport[8] at [24]-[35], portions of which are quoted here:
- Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.
- Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 …
Toohey and Gaudron JJ said at 380:
The expression “fit and proper person“, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper“ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[Emphasis added]
- A person’s fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156–7):
The expression “fit and proper“ is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection.….
- In Saadieh v Director General, Dept of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person’s suitability and fitness to obtain a taxi authority. They are:—
- the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;
- the Applicant’s reputation in the community; and
- the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.
- In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] drew attention to the role public interest considerations play in the assessment of fitness and propriety:
The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be “narrowly construed or confined“ and may extend to “any aspect of fitness and propriety that is relevant to the public interest“ (Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ …
- As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person’s likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:
A distinction must be drawn between “repute“ or “reputation“ and “character“ or “disposition“. The word “character“ is sometimes used as meaning a person’s reputation, but “reputation“ is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts.
In Melbourne v R [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained:
… character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called “disposition — which is something more intrinsic to the individual in question“. It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person.
Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:
“Good repute“ refers to the way reasonably-minded people assess an individual’s current reputation, with reasonably precise knowledge of those matters that put the person’s reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person’s reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the “good repute“ requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
- [17]What these authorities make clear is that the term is not narrowly constrained to an applicant’s criminal history, or to evidence of an applicant’s character (positive or negative). The reputation of an applicant, being the public perception of their conduct in the role in question is relevant.
The Public Interest
- [18]The tribunal has previously discussed the meaning to be given to the term ‘public interest’ in the context of the TPA in MKN v Chief Executive:[9] [footnotes included]
[13] It was determined in Smith v Commission of Police, NSW Police Force and Anor[10] that the concept of the ‘public interest’ is ‘not confined’ except by the scope and purpose of the legislation (in this case the TPA).[11]
[14] In Smith’s case, Senior Member Montgomery said that the ‘public interest’ is designed to give the ‘broader interests of the community priority’ over the private interests.[12] Senior Member Montgomery summarised relevant cases from courts and tribunals that have considered the concept of the ‘public interest’. Some of those cases are now summarised as follows:
The ‘public interest’ is ‘a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities.... The interest is therefore the interest of the public as distinct from the interest of an individual or individuals’.[13]
The ‘public interest’ is ‘an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual’.[14]
An applicant’s personal interests ‘in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry’.[15]
The “public interest” allows…for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system’.[16]
The Evidence and Criminal Information about KLM
- [19]KLM filed 3 affidavits in the proceeding.[17] He also gave evidence and was cross-examined at the hearing. The tribunal also had access to confidential criminal intelligence reports about KLM.
- [20]KLM has acknowledged that he is a member of the Rebels Motorcycle Club, but says that he is a retired member. He stated that he became a member in approximately 1981, prompted by his enthusiasm for motorcycles while working as a motorcycle mechanic and fabricator. He states that he joined for “social purposes and my enjoyment of motorcycles” and that he “certainly did not join the club for the purposes of committing crimes or even associating with criminals.”[18]
- [21]He denied the suggestion that he was the president of the Albion Chapter, or president of any chapter, despite media reporting. He stated that he was a life member but held no executive role and only organised some events for the club.
- [22]The Criminal Intelligence Report provided by the second respondent contained the confidential affidavit of Detective Superintendent Jon Wacker, summarising the report of Detective Senior Constable Peter Scott which attached intelligence holdings.
- [23][Redacted]
- [24][Redacted]
- [25][Redacted]
- [26][Redacted]
- [27][Redacted]
- [28][Redacted]
- [29]KLM gave evidence about his positive contribution to the development of health standards and quality control in the tattoo industry. He said that he was ‘heavily involved’ in the development of the current Public Health (Infection Control for Personal Appearance Services) Act 2003 (Qld). He says that in the early 1990s he travelled to the US to study pathology as part of an initiative of the USA Alliance of Professional Tattooists Inc., and that he subsequently approached Queensland Health to advocate for a state infection control standard in the tattoo and piercings industry.[19]
- [30]KLM’s evidence about his positive contribution to the industry is not contested. I consider it is relevant both to the questions of his fitness and propriety to hold a tattoo licence and the public interest in him having a tattoo licence.
- [31]KLM’s criminal history was disclosed to the tribunal and was the subject of evidence at trial.
- [32]KLM has a traffic history involving speeding and drink driving, however the drink driving incident is from 1983, and the most recent speeding offence is 2007, while the other offences are minor. The representative of the Commissioner at the hearing conceded that the traffic history, given the time passed since those offences, was not significant. I agree with this concession.
- [33]KLM was convicted without a recorded conviction in 2000 for breach of restrictions on keeping and using protected animals. He explained at the hearing that this charge came about because he was preparing a wall mount for a crocodile’s head for a client at the time police executed a search warrant, and he did not have the required paperwork certifying that the crocodile’s head was not poached.
- [34]In the circumstances of that evidence, which was not contested by the Commissioner, I am satisfied that this criminal history does not bear adversely on KLM’s fitness and propriety to hold a licence, or the public interest in granting him one.
What is the relevance of KLM’s membership of the Rebels Motorcycle Club on his fitness and propriety and on the public interest in KLM holding a licence?
- [35]In circumstances where KLM’s criminal history is relatively minor and it is not contested that he has made a positive contribution to the tattoo industry, an obviously pivotal issue is the relevance of KLM’s membership of the Rebels Motorcycle Club, as well as the relevant criminal intelligence discussed above.
- [36]The Rebels Motorcycle Club is a ‘declared criminal organisation’. The Criminal Code (Criminal Organisations) Regulation 2013, s 6 prescribes 26 motorcycle clubs, including the Rebels Motorcycle Club, as ‘criminal organisations’ for the purposes of the Criminal Code.
- [37]The Criminal Code (Qld) s 1 defines ‘criminal organisation’ as
(a) an organisation of 3 or more persons—
(i) who have as their purpose, or 1 of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity as defined under the Criminal Organisation Act 2009; and
(ii) who, by their association, represent an unacceptable risk to the safety, welfare or order of the community; or
(b) a criminal organisation under the Criminal Organisation Act 2009; or
(c) an entity declared under a regulation to be a criminal organisation.
- [38]The applicant correctly notes that such a declaration does not criminalise membership of a motorcycle club, and has been held by the High Court to be only one element of a criminal offence:
[234] The exercise of the power to declare an organisation to be “a criminal organisation” does not purport to adjudge or punish the criminal guilt of any person; the exercise of the regulation-making power to declare a group of persons to be a criminal organisation involves no adjudication of rights or duties or liabilities.
[235] As noted above, the tendentious language in which these laws are expressed conceals their true effect. The only legal effect of a declaration is to establish an ingredient of an offence, the contravention of which must still be proved in the ordinary way.[20]
- [39]KLM has submitted that absent a criminal conviction after judicial process for one of the offences which the VLAD laws connect to membership of a declared criminal organisation, his membership and associations cannot be relevant.[21]
- [40]Having regard to the objects and purposes of the TPA, that cannot be the case. If it were necessary to establish that KLM had engaged in criminal activity in order to fail the test of fit and proper or public interest, then being a member of a declared criminal organisation would not establish that fact. The relevance instead is to the consideration of public interest. The question to be asked is whether it is contrary to the public interest to grant a tattoo licence to a member of a declared criminal organisation on the basis that this may give rise to a concern that improper conduct will occur.
- [41]As the NSW Civil and Administrative Tribunal observed in Smith,[22] considering similar legislation with a similar purpose (disclosed in a similar explanatory memorandum and second reading speech), the involvement of motorcycle clubs in the tattoo industry is clearly a matter of public concern which has motivated the legislature to act.
- [42]Public interest is broader than simply whether a person has been convicted of criminal offences. The language of s 20 of the TPA does not constrain the Police Commissioner to report on whether an applicant for a licence has been convicted of a criminal offence.
- [43]The applicant has submitted that the focus on criminal motorcycle gangs in the second reading speech excludes motorcycle clubs whose members have not been convicted of serious crimes. But the more plausible reading is that it includes motorcycle clubs which are declared to be criminal organisations.
- [44]I accept that KLM has made a positive contribution to the tattoo industry. However, I must balance that contribution against KLM’s strong allegiance to the Rebels Motorcycle Club and the implications this carries for the public perception of his conduct as a licence holder, and the criminal intelligence about him. Having regard to the purpose of the Tattoo Parlours Act, I find that the correct and preferable decision is that KLM is not a fit and proper person and it is not in the public interest for him to hold a licence. I find that the correct and preferable decision is to make an adverse security assessment about KLM.
Conclusion and further proceeding
- [45]The applicant is ultimately seeking a review of the decision to refuse his application for an operator licence under the TPA. As a preliminary matter, the Tribunal has determined that the correct and preferable decision is to confirm the Commissioner’s decision to made an adverse security determination about the applicant.
- [46]Under the TPA, the chief executive must decide to refuse to grant the licence if an adverse security determination is made by the Commissioner. As was held in MKN, the Tribunal standing in the shoes of the chief executive decision maker on review must confirm the decision to refuse to grant the licence.[23] As in MKN however, the applicant should be given an opportunity to decide whether he wishes to continue with the substantive review application in light of this decision, and I make orders accordingly.
Non-Publication Orders
- [47]The Tribunal has previously found that material relied upon by the Commissioner in making the adverse security determination is criminal intelligence or other criminal information as provided in s 20(3) of the TPA. The Tribunal thus made an order pursuant to s 66 of the QCAT Act prohibiting the publication of the contents of those documents to any person other than the second respondent and his representatives; and any information that may enable the applicant to be identified.[24]
- [48]It is therefore appropriate that the Tribunal deliver and publish two sets of reasons. One set to the second respondent and a redacted set to the other parties and for publication. It is also appropriate that the Tribunal de-identify the name of the applicant and the business where he proposes to conduct his tattooing business.
Footnotes
[1] TPA, s 15(b).
[2] TPA, Schedule 1.
[3] Ibid, s 57(3).
[4] KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit & Anor [2016] QCAT 512.
[5] Acts Interpretation Act 1954 (Qld), s 14B(3).
[6] Explanatory Notes, Tattoo Parlours Bill 2013 (Qld), 1.
[7] Ibid.
[8] [2012] NSWADT 101.
[9] MKN v Chief Executive of the Queensland Department of Justice and Attorney-General Commissioner of the Queensland Police Service (No 2) [2015] QCAT 452.
[10] [2014] NSWCATAD 184. See also Zahra v Commissioner of Police, NSW Police Force and Anor [2014] NSWCATAD 211.
[11] Smith v Commissioner of Police, NSW Police Force and Anor [2014] NSWCATAD 184, [43].
[12] Ibid, [42].
[13] Director of Public Prosecutions v Smith (1991) 1 VR 63, see Smith’s case, [44].
[14] Commissioner of Police v Toleafoa [1999] NSWADTAP 9, see Smith’s case, [45].
[15] Blissett v Commissioner of Police, New South Wales; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114, [32]; see Smith’s case, [46].
[16] Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16, see Smith’s case, [47].
[17] Exhibit 1, Affidavit of KLM dated 18 May 2016; Exhibit 2, Affidavit of KLM dated 12 August 2016; Exhibit 4, Affidavit of KLM dated 18 May 2016.
[18] Exhibit 2, Affidavit of KLM dated 12 August 2016, [10]-[11].
[19] Exhibit 2, Affidavit of KLM, dated 12 August 2016, [17]-[19].
[20] Kuczborski v Queensland [2014] HCA 46, [234]-[345], per Crennan, Kiefel, Gageler & Keane JJ.
[21] Submissions by the Applicant, dated 24 August 2016, [69], [72].
[22] Smith v Commission of Police, NSW Police Force and Anor [2014] NSWCATAD 184.
[23] MKN v Chief Executive of the Queensland Department of Justice and Attorney-General, Commissioner of the Queensland Police Service (No 2) [2015] QCAT 452, [39].
[24] KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit & Anor [2016] QCAT 512 at [22].